# Kumar Jaiswal v. Chief Metropolitan

- **Citation:** (2010) 2 ILRA 606
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-05-26
- **Case number:** Civil Misc. P.I.L. No. 29169 of 2010
- **Bench:** Amitava Lala, A.C.J. Shabihul Hasnain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kumar-jaiswal-v-chief-metropolitan-41645
- **Pages:** 4

## Headnote

Constitution of India Art. 226-Petition
seeking
exumption
from
Trainingindexing in census-on grand of main task
of teacher to impart education and the
interest
of
Student-objected
when
receiving Salary from public exchequerconsidering balance of public importance
as well as students-petition disposed of
with direction to engage those teachers
during
vacation
period
considering
individual strength of those institutionsnecessary direction issued.

Held: Para 5

As against such view of the Supreme
Court, we can not hold and say that
Teachers
cannot
be
taken
for
the
purpose of rendering census work which
is required for national importance,
therefore, striking the balance between
the two parts, we find that the first part
is the training and the same can be made
within summer vacation of the year and
fixed for three days only, we do not find
any
difficulty
for
the
Teachers
in
attending
such
training.
So
far
as
indexing and final work for the purpose
of
completion
of
census
work
are
concerned, for the sake of equity, we
direct the Central and State authorities
to fix a pro gramme either preponing the
dates or otherwise so that the duties can
be discharged by such Teachers during
vacational period which is forthcoming
or in the periods when the institutions
are closed inclusive of holidays unless
they are compelled to accept their duty
in any working day and if such work are
taken in the working days then in that
case
the
authorities
will
take
into
account the strength of the Teachers of
the individual institutions so that there
should not be any difficulty in imparting
education to the students.
Case law discussed:
1995-AIR (SC)-0-1078, 1995-SCC-Supp2-13,
1995; 2008(1) ESC 1 (SC).

## Text

606 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
execute the measures which the creditor has
decided to take under sub-section (4) of
Section 13 of the aforesaid Act.

Sub-section (1) of Section 17 of the
aforesaid Act, interalia, provides that any
person (including borrower), aggrieved by
any of the measures referred to sub-section
(4) of Section 13 taken by the secured
creditor or his ٛ
uthorized officer, may
make an application to the Debts Recovery
Tribunal within forty five days from the
date on which such measures had been
taken.

13. It will thus, be seen that the
petitioners have got alternative remedy
under Section 17 of the aforesaid Act.

14. It is true that Section 17 of the
aforesaid Act does not provide remedy
against the order passed under Section 14 of
the aforesaid Act. It is also true that in view
of sub-section (3) of Section 14 of the
aforesaid Act, the action taken under
Section 14 of the said Act attains finality.
However, as noted above, Section 14 of the
aforesaid Act is merely a consequential
provision and is for the purpose of
executing the measures taken under subsection (4) of Section 13 of the aforesaid
Act. The order under Section 14 of the
aforesaid Act is merely a consequential
order.

15. Even though, the petitioners may
not have remedy under Section 17 of the
aforesaid Act against the order passed under
Section 14 of the aforesaid Act but the
petitioners
may
approach
the
Debts
Recovery Tribunal against the measures
taken by the respondent no.4-Bank under
sub-section (4) of Section 13 of the
aforesaid Act. Thus, the petitioners have got
an alternative remedy under Section 17 of
the aforesaid Act against the measure taken
under sub-section (4) of Section 13 of the
aforesaid Act for taking possession of the
property given as security.

16. Reference in this regard may be
made to a decision of this Court in Virendra
Kumar Jaiswal V. Chief Metropolitan
Magistrate and another, 2009 (10) ADJ
203 (DB)=2010 (1) AWC 832 (DB).

17. Having regard to the nature of
controversy involved in the present Writ
Petition, we are of the opinion that it would
be appropriate that the petitioners be
relegated to avail the alternative remedy of
filing application/appeal under Section 17
of the aforesaid Act.

18. In view of the above, the Writ
Petition is liable to be dismissed on the
ground of alternative remedy available to
the petitioners.

19. The Writ Petition is accordingly
dismissed on the ground of availability of
alternative remedy to the petitioners.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2010

BEFORE
THE HONBLE AMITAVA LALA, A.C.J.
THE HON'BLE SHABIHUL HASNAIN, J.

Civil Misc. P.I.L. No. 29169 of 2010

U.P. Madhymic Shikshak Sangh and
another

 ...Petitioner
Versus
Union of India and others ...Respondent

Counsel for the Petitioners:
Sri Alok Dwivedi
Sri R.K. Ojha
2 All] U.P. Madhymic Shikshak Sangh and another V Union of India and others
607
Counsel for the Respondents:
C.S.C.
A.S.G.I.
Sri S.K. Mishra

Constitution of India Art. 226-Petition
seeking
exumption
from
Trainingindexing in census-on grand of main task
of teacher to impart education and the
interest
of
Student-objected
when
receiving Salary from public exchequerconsidering balance of public importance
as well as students-petition disposed of
with direction to engage those teachers
during
vacation
period
considering
individual strength of those institutionsnecessary direction issued.

Held: Para 5

As against such view of the Supreme
Court, we can not hold and say that
Teachers
cannot
be
taken
for
the
purpose of rendering census work which
is required for national importance,
therefore, striking the balance between
the two parts, we find that the first part
is the training and the same can be made
within summer vacation of the year and
fixed for three days only, we do not find
any
difficulty
for
the
Teachers
in
attending
such
training.
So
far
as
indexing and final work for the purpose
of
completion
of
census
work
are
concerned, for the sake of equity, we
direct the Central and State authorities
to fix a pro gramme either preponing the
dates or otherwise so that the duties can
be discharged by such Teachers during
vacational period which is forthcoming
or in the periods when the institutions
are closed inclusive of holidays unless
they are compelled to accept their duty
in any working day and if such work are
taken in the working days then in that
case
the
authorities
will
take
into
account the strength of the Teachers of
the individual institutions so that there
should not be any difficulty in imparting
education to the students.
Case law discussed:
1995-AIR (SC)-0-1078, 1995-SCC-Supp2-13,
1995; 2008(1) ESC 1 (SC).

(Delivered by Hon'ble Amitava Lala, ACJ)

1. The grievance of the petitioners'
association being the Teachers of the
respective
aided,
non
government
recognized institutions in the name of
Uttar
Pradesh
Madhyamic
Shikshak
Sangh and its Secretary, by way of this
public interest litigation, is that in the
recent census the teaching staffs of the
various institutions were directed by the
Central/State authorities to be deployed in
the census work.

2. According to the respondents, the
work is required to be done in three
phases: April, 2010-Training, September,
2010-Indexing and from February, 2011
for about four months for the purpose of
completion of appropriate census work.
The main grievance of the petitioners is
that the Teachers are engaged in imparting
education,
therefore,
interest
of
the
students are to be protected. It is further
submitted before us that if the Teachers are
not taken for the purpose of rendering
actual work to be done in the census, they
should not be called for training.

3. The respondents both for the
Union of India and the State have appeared
and contended before us that census is
required to be done for national interest,
therefore, nobody can avoid such type of
work irrespective of their imparting
education particularly, when they are
receiving salary from the public exchequer.
In the month of June the schools/colleges
will be closed and only three days are
required for the purpose of training during
such period. No guardian or Teacher or
institution have come forward objecting
608 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the steps taken by the Union of India and
State with regard to census work. They
will get their appropriate emoluments for
the purpose of doing the work. However,
in support of the contentions of the
petitioners they relied upon the judgement
of the Supreme Court reported in 1995AIR (SC)-0-1078, 1995-SCC-Supp2-13,
1995 (Election Commission of India
Versus State Bank of India Staff
Association Local Head Office Unit
Patnas:
Northern
Zone
Insurance
Employees Association) and 2008 (1)
ESC 1 (SC) (Election Commission of
India Versus St. Mary's School and
others). However, even before the citation
we wanted to strike a balance between two
contingencies: one is imparting education
and another is with regard to assistance in
the census work by the Teachers. Election
Commission of India (Supra) i.e. the
second judgement of Supreme Court also
said about Teachers in respect of holding
duty for the election purpose that there is
necessity to maintain the balance between
the two.

4. Sri S. K. Misra, learned counsel
appearing for the Union of India has
voluntarily stated before this Court that
only 5 to 10 percent Teachers of an
institution as per record, has been taken for
the purpose of rendering and discharging
their work. If it is so, there would not be
any difficulty to strike a balance and fulfill
the direction by this Court.

5. As against such view of the
Supreme Court, we can not hold and say
that Teachers cannot be taken for the
purpose of rendering census work which is
required for national importance, therefore,
striking the balance between the two parts,
we find that the first part is the training and
the same can be made within summer
vacation of the year and fixed for three
days only, we do not find any difficulty for
the Teachers in attending such training. So
far as indexing and final work for the
purpose of completion of census work are
concerned, for the sake of equity, we direct
the Central and State authorities to fix a
pro gramme either preponing the dates or
otherwise so that the duties can be
discharged by such Teachers during
vacational period which is forthcoming or
in the periods when the institutions are
closed inclusive of holidays unless they are
compelled to accept their duty in any
working day and if such work are taken in
the working days then in that case the
authorities will take into account the
strength of the Teachers of the individual
institutions so that there should not be any
difficulty in imparting education to the
students.

6. To fulfill the desire of the Court
the Central and State authorities can sit a
meeting and give the proposals giving
various alternative dates to the respective
institutions through the association to
complete the work effectively at the
earliest for the cause and fulfillment of
desire of the Court.

7. We dispose of this petition with
above
directions,
however,
without
imposing any cost.
---------
2 All] Dr. Avanish Prakash Singh and another V The State of U.P.and others
609
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.06.2010

BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE RAJESH CHANDRA, J.

Civil Misc. Writ Petition No. 35774 of 2010

Dr. Avanish Prakash Singh and another

 ...Petitioners
Versus
The State of U.P. and others

 ...Respondents

Counsel for the Petitioners:
Smt. Arti Raje
Sri Satyawan Srivastava

Counsel for the Respondents:
C.S.C.

Constitution of India Art. 226-Petitioner
working as lecturer on Manday basishaving
teaching
experience-seeking
preference in substantive appointmentin absence of statutory provision no such
direction can be issued by writ court.

Held: Para 7 & 8

Selection for appointment as teacher on
Mandeya under the Government Order
dated 07.04.1998 does not provide for
any such adjustment of teacher against
such subsequent vacancies and nor any
preference, on the strength of earlier
working as teacher on Mandeya has been
provided for.

So far as the order of the Division Bench
of this court passed in writ petition no.
11124 of 2009 is concerned. Suffice to
record that no legal proposition has been
laid down by the judgement. Only a
direction was issued to consider the
request made as per the law. The law
has
been
explained
by
this
court.
Therefore, no further consideration by
the Regional Higher Education Officer is
required.

(Delivered by Hon'ble Arun Tondon, J.)

1. Petitioner who are two in number
claim to be appointed on Mandeya against
the substantive vacancies which were
available in Udai Pratap Autonomous
College, Varanasi. The appointment was
made in terms of the Government order
dated 7th April, 1988 where under
payment to such Mandeya Teachers was
to be made on per lecture basis subject to
the
maximum
provided.
Their
appointment was to commence in July
end with the close of Academic Session.
Clause 3 of the Government order further
provided
that
continuance
of
such
teachers appointed on Madeya for the
next academic session would require fresh
selection for the purpose. It is Stated that
the petitioner along with other candidates
filed writ petition no. 27167 of 2007
before this court seeking continuance as
teacher on Mandeya against the available
vacancy without under going the process
of selection for the next academic session.
The writ Court passed an interim order
providing that the teachers working on
Mandeya shall continue as such till
regular appointment is made on the post
in question.

2. Thus on the statement made by
the counsel for the petitioner this court
has no hesitation to record that the right of
the petitioners to continue as teachers on
Mandeya in the institution against the post
was subject to the condition that such
appointment would come to as automatic
end when a regular teacher is apointed
after due selection on the post.

3. From paragraph 17 of the present